Res communes omnium: Dalle necessità economiche alla disciplina giuridica by Domenico Dursi

BOOK REVIEWS/COMPTES RENDUS 429 the best books do: it forces readers to reexamine very basic assumptions about this period. It should be read and taught widely, as Terrenato’s rethinking of Roman imperialism in Italy will invigorate our search to understand not only the mechanics of conquest, but also its myriad consequences. University of Toronto Seth Bernard RES COMMUNES OMNIUM: Dalle necessitÁ a economiche alla disciplina giuridica. By Domenico Dursi. Naples: Jovene Editore. 2017. Pp. xvi, 163. The category of property known as “things common to all” has long been somewhat mysterious. Theodor Mommsen famously could not make head or tail of it.1 One might think that scholars would find this quality intriguing, especially because the category and its contents intersect with some crucial contemporary concerns. But it is only relatively recently that we begin to see a serious and sustained interest in the matter. Domenico Dursi goes a long way toward demystifying the res communes omnium (RCO) in this important new book. It is easy enough to list the RCO. Justinian conveniently does this for us (Inst. 2.1.1).2 The classification includes air, flowing water, the sea, and the shore. But what does “common to all” mean? How is this category distinct from other types of non-private property, such as res publicae? Who owns these items, if anyone does? What are appropriate ways to make use of them? How is their exploitation to be regulated at law? Are there more such “things” than Justinian lists? In the very brief introduction, comprising just three pages, one of which consists almost entirely of a long footnote stuffed with bibliography, Dursi rapidly sets forth his goals. First, a thorough analysis of key evidence from the late-classical legal expert Marcian is necessary, to be followed by an attempt to trace the existence of the category of RCO in the works of his juristic predecessors. The author intends to place particular emphasis on possible concerns of an economic nature, above all those relevant to the freedom to fish. At all events, he makes clear that his approach is that of a Romanist, meaning that in the end his subject is Roman law (2–3). In his first chapter, “Le res communes omnium nella giurisprudenza tra Adriano e i Severi,” Dursi discusses the views of those high and late classical jurists who deal with aspects of the RCO, above all, Marcian. As the author correctly observes (9), Marcian does not confuse the categories of RCO and res publicae, but holds them distinct from each other. After mentioning (10) three categories of analysis one can apply to the things common to all (ownership or possession, use, protection at law), he raises the question, over which scholars have disagreed, of whether Marcian’s list of four items (air, flowing 1 T. Mommsen, “Sopra una iscrizione scoperta in Frisia,” Bullettino dell’Istituto di Diritto Romano 2 (1889) 129-135, at 131: “quelle benedette res communes omnium, che non hanno nè capo nè coda . . . . ” 2 This text is of fundamental importance for the development of the “Public Trust Doctrine” in the U.S., which holds that there are certain types of property—mainly natural resources—that sovereign governments hold in trust for public use: see B. W. Frier, “The Roman Origins of the Public Trust Doctrine,” JRA 32 (2019) 641–647, which offers a more comprehensive review of the book under discussion than is possible here. 430 PHOENIX water, sea, and shore) is supposed to be exhaustive or merely a list of examples. Dursi persuasively holds for the first alternative. He concludes that the category of RCO formed slowly over time in the high and late classical periods (ca a.d. 90–235) and reached its true crystallization with Marcian, who identifies a limited number of items as belonging to the entire human race (19). Next, we find, in “Le res dell’elenco marcianeo,” an analytical treatment of the four components of the category. Among matters of interest here is the observation that the jurists did not distinguish clearly between the conception of air as space and air as substance, as well as the argument that Ulpian’s concession of the interdict ne...

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